Thursday, October 31, 2013


Political Mayhem Thursday: The Politics of Food

On Tuesday, I had the wonderful experience of talking about narcotics policy at Harvard Law School.  I walked in and there were more people than seats; I wasn't sure I was in the right place (I think it had more to do with the excellent food than me).  As at Stanford earlier this month, the Q & A session was great-- I suppose that when you engage some of the smartest students in the country, that is the result.  It sounds like I get to go back in February, which I really look forward to.

After the talk I shared dinner with my former student at Baylor Law, Tim Swearingen.  The food was amazing-- crab chowder, duck meatloaf, and some chocolatey thing with frangelico ice cream (thanks, Tim!).  Boston has high standards for food.

Food is important to me, because I really enjoy it.  I eat meat-- all kinds of it.  Still, I do realize that there are environmental costs to the way I live, including the way I eat.  Obviously, I haven't made the choices some others have, to avoid meat and other foods for health and environmental reasons.

Is this a major issue to anyone out there?  If so, I'd like to hear your view...

Wednesday, October 30, 2013


The (other) problem with Sochi

I have always loved the Winter Olympics, and am more interested than ever now that I live someplace where people do things like ski jumping and biathlon.  

The Sochi Olympics are just 100 days away, and there is trouble.  Russia has passed anti-gay legislation that is deeply troubling, and there is talk of a boycott.  

There is one factor I didn't realize until today, though, when I finally located Sochi on a map.  It is far south, in a subtropical climate; the city is in fact a coastal resort town on the Black Sea.  The winter temperatures are between 50 and 70.  The plan to gin up enough snow by using some that was stored from last winter, and making some with blowers.

Really?  Whose idea was it to have the Winter Olympics in a place without a real winter???  And... really, Russia?!?  Lots of better candidates there...

Tuesday, October 29, 2013


12 Years a Slave

I haven't seen the movie "12 Years a Slave" yet, but hope to soon.   My mentor Joanne Braxton wrote a great piece in Sunday's Daily Press about it (am I the only person who didn't have something in Sunday's paper?).   She saw the movie at Hampton University,  a school not far from William and Mary, but with very different origins.  

Here is part of what she had to say:

For the unfamiliar, Hampton University is a historically black university founded for the education of former slaves, virtually under the arms of the Emancipation Oak. More than 150 years old, this tree has been designated one of the 10 great trees of the world by the National Geographic Society, because it is where many formerly enslaved African Americans gathered to receive their first lessons in literacy from Mrs. Mary Peake in 1861. Under its shelter, the thirst for freedom and literacy grew from the dust of yearning into one of the most powerful movements in America.

Twelve Years, a true story of horrific proportions, is not easy to watch, even for someone who has studied and taught the slave narrative as literature. Solomon, a free man, is drugged and betrayed by people he thought were friends, and thrust into a system of pure evil, most frequently represented in the genre of the slave narrative as "hell."

Have any of you out there seen the movie?  How did it affect you?

Monday, October 28, 2013


More great writing!

I'm kind of overwhelmed by the great work of my collaborators.  Yesterday, Craig Anderson wrote a wonderful piece in the Richmond Times-Dispatch about the Chesapeake.    He has begun writing for them regularly, and every bit of it is good.  Here is a snippet from yesterday's article:

In a culture that tends to champion property rights and individual freedoms over the collective good, water is the one issue that underlies and transcends such limited notions. What you own might be yours, yet what you do on your property can impact everybody. Water underscores our connectedness. Water innately argues for an imperative of common cause to protect our regional resources. Water is the unifying thread.
As a person of faith, I walk by a baptismal font of blessed water every Sunday as I walk into church. As a baptized Christian, I was blessed by water from a similar font. During our weekly communion service, I sip from a chalice full of wine, the symbolic blood of Christ, another sacred form of water.
Water is fundamental to my faith. Water is also fundamental to my spiritual and physical well-being. My faith tradition (Episcopal) suggests that being good stewards of our environment is one of the most important moral issues of our time.
I love that, and agree with it.
In other news, we had some wonderful haiku about make-out spots.  It was great to see Renee and Sally and Geoffrey back-- good work!  And any reference to Rum Raisin ice cream must be good.  I was a little surprised to find out about how much make-out time Christine had back in the day... I had no idea (and she lived five houses down the block).  Here is what she wrote:

They drove to the beach
setting sun, blanket, vino
It was their Eden.

Sunday, October 27, 2013


Sunday Reflection: The Killer

My opposing counsel in the Trial of Jesus is Jeanne Bishop, a Chicago public defender.  Often during our presentations, someone will say "You wouldn't be against the death penalty if it was your family that was killed!"

I let Jeanne handle that question, because she knows.  Her pregnant sister, Nancy, and her brother-in-law, Richard, were murdered.

Now, Jeanne has been meeting with the man who killed her family members.  His name is David Biro. Jeanne was driven to do so by something Randall O'Brien wrote:  "Every Christian has the responsibility to reconcile with the person who has wronged them."

The front-page story in today's Chicago Tribune is about that reconciliation; you can (and should) read it here.

One of the things that baffled me was the idea that Jeanne is somehow being "manipulated" by Biro.  If there is anyone who isn't going to be manipulated by a convict, it is a 23-year veteran public defender.  She has spent more time in jails and discerning the guilty from the innocent than anyone I know-- and I used to be in that business myself.   What she is doing is brave and good, one of the hard tasks (as Randall described it) that faith requires.

Saturday, October 26, 2013


Stolen from the comments section (and Jeremy Masten)!

In response to my post about legal scholarship, my former Baylor student Jeremy Masten posted something that was better than my own musings (the same can be said of David Best's comment on last week's Political Mayhem Thursday).  As background, you should know that Jeremy wrote an excellent law review piece about Queso's Law.  For those of you who have forgotten (or never knew), Queso was a cat who lived behind the La Fiesta restaurant in Waco and was abused by some Baylor students.  Here is what Jeremy had to say:
There is a problem with the thesis. Law reviews are not "the primary repositories of legal scholarship." (Unless you tautologically define legal scholarship as the stuff in law reviews.) Nor should they be. The life of the law has not been logic, and all that. It seems to me that the primary repositories of legal scholarship are judicial opinions (which, I would argue, have the most effective peer-review system out there). Just about every appellate court in America has some scholar-in-robes yearning to be Marshall or Cardozo (and usually doing alright at it).

Practice guides are a close second. (But maybe that's like saying that medical journals are a close second to the hospital wards as repositories of medical scholarship.)

So what are law reviews good for? I think two things: (1) criticizing ideas that have escaped review for some reason and (2) predicting ideas that haven't been reviewed yet. (I might cite to a clever analysis of Queso's law in Texas, but that would only be self-aggrandizing.)

Besides, according to Westlaw, my article has exactly 0 citations. But my email has in it somewhere a nice note from a justice of the Texarkana Court of Appeals thanking me for my concise explanation of the Texas version of the ban on cruel or unusual punishment.

So there.

Friday, October 25, 2013


Haiku Friday: Making out

When I was a teenager back in Grosse Pointe, people would go down to the little strip of grass by the lake to make out.  On a warm summer night, it got a little crowded down there.  Here in Minnesota, I've heard that the place for teenagers to make out is the warming huts by the outdoor ice rinks.  I guess that kind of makes sense... coming in from the cold and all that.

Kissing is a funny thing-- I'm not quite sure where that came from, the idea of it.  It doesn't really serve an evolutionary purpose that I can think of.  Still, what better topic can there be for haiku?

I'll go first:

Eight feet of lawn and
Those towering elms; summer
How could they not kiss?

Now it is your turn... make it 5 syllables/7 syllables/5 syllables and all will be good...

Thursday, October 24, 2013


Political Mayhem Thursday: The Problem with Internships...

I was intrigued by a story yesterday in the New York Times about Conde Nast ending its internship program.  It made the decision amidst a dispute over whether interns should be paid.

Frankly, it's something I hadn't thought of before-- that some companies might be intentionally displacing employees (or potential employees) by relying on the free labor provided by interns.  Of course, this assumes that interns can provide quality work, which is more true some places than others. 

What do you think?  Is there an ethical problem with a company using lots of free labor through an internship program?

Wednesday, October 23, 2013


Good news for pandas!

According to Yahoo News (which is apparently taking a brief break from non-stop celebrity tidbits) and "scientists," panda have some small amount of genetic diversity among the 1500 wild animals left in six isolated parts of China.  

Speaking of pandas, I occasionally get questions about Grar the Giant Maverick Panda,  who lost the presidential election to the liberal, Argbf.  The news is good!  After making a small fortune doing cheese commercials in India,  Grar returned to Washington to use those same skills as a lobbyist for defense contractors, Chinese toy manufacturers, and Yu Wan Mei (which also has hired IPLawGuy to protect the trade name and distinctive markings of the Yu Wan Mei Device).   Hurray for Grar! 

Tuesday, October 22, 2013


The whispy roar of legal scholarship

Since law school, I have been deeply involved in legal scholarship.  I was a Senior Editor at the Yale Law Journal, and published my first article the year after graduating.  Since then, I have published over 30 more.  That includes five that have been published in just the last two years, in journals at Stanford, UNC, Ohio State, St. Thomas, and Valparaiso.  Justice Stevens even quoted my scholarship once in an opinion.  I've put a lot of my store of energy and time into the machine of legal scholarship.

An article in today's New York Times  concludes that such scholarship is produced within a system run by "incompetents," has little societal impact, and that "Law reviews are not really meant to be read. They mostly exist as a way for law schools to evaluate law professors for promotion and tenure, based partly on what they have to say and partly on their success in placing articles in prestigious law reviews."

That evaluation is pretty much correct.   Much of what I have written, along with the work of thousands of other professors, has been a colossal waste of time, dropping without a sound into an electronic slush pile while creating not even a bit of impact on the world.

About seven years ago, I became convinced that doing traditional legal scholarship was not enough.  I had to work my ideas into conventional and new media as well, and speak frequently to a variety of audiences.  If I write a really good article, maybe 100 people will read it all the way through.  If I make the same point via an outlet like the Huffington Post or CNN, hundreds of thousands of people may see it.  Because I really care about the arguments I make, I do both.  The articles substantiate my point in a detailed way, while the short-form and media work broaden the discussion.

Still, I am saddened by the tremendous inefficiency of the process of legal scholarship as a whole.  It is subsidized by student tuition payments and the donations of faithful alums.  We owe them something better.

Monday, October 21, 2013


Enjoying Haiku but not Chinese Food

CTL the Intern sent me this video from his new favorite awful song.  It's horrible.  I thought it had plateaued in awfulness, but then the Panda made an appearance.  According to the Wall Street Journal, it isn't intended to be, uh, provocatively racist.

So, apparently, CTL was doing this instead of writing haiku.  We did get some good entries, though, like this one from Christine, which told a whole freshman year's worth of woe:

The Matisse flowers
countered Dali dripping clocks
Roommate art conflicts

Sunday, October 20, 2013


Sunday Reflection: This United States of America

In the past few weeks, I have literally been from one end of the country to the other-- from Georgia and  Virginia to Alaska and California.  It has reminded me of the breadth and stunning beauty of this country, and the variety of cultures and communities within.  I went to places I know and love (Williamsburg and Stanford) and to new places (Anchorage and UCLA), and everywhere found caring, engaged people who want to make things better.

The recent spat in Congress notwithstanding, my experience has been that people on the right and left have in common a deep love for this country and a desire to see it improve and thrive.  They often love the same things, too.

Thanksgiving is my favorite holiday, and I suspect it will be especially warm and deep this year.

Saturday, October 19, 2013


IPLawGuy, Save Snoopy!

I only know three people who don't like Snoopy, and two of them are in prison.  So why would Fisher-Price mess with Snoopy by marketing this hot-dog-tailed monstrosity?

How can IPLawGuy let this happen? I think he has obviously fallen down on the job (assuming that his job is preventing the misuse of any and all trademarks, which I think it true).  

Friday, October 18, 2013


Haiku Friday: Best Posters

Even though the text got a little bolixed up in transition to digital format, I really loved this poster that the UCLA folks made for my visit, showing a background of prison complexes.  Not the feel-good poster of the summer, but still.

One of my favorite lines in music is about posters:

"Everything you learned
Came from a poster of a cat."

I know what poster they were talking about, too-- the one where the cat is hanging from a tree, and it says "hang in there!"

Let's haiku about posters today... we all have a favorite.  Here is mine:

Baylor Football pic
2003; doomed team!
They looked ready...

Now you go!  5/7/5...

Thursday, October 17, 2013


Political Mayhem Thursday: Presidential or Political?

So, the government shutdown is over.  What comes next?

I realize that I've been cribbing a lot of my work lately from Ron Fournier, and I don't apologize for it-- Ron is doing some of the best work in America these days.  He is fair, smart, and beholdened to neither side.

A very long time ago, Ron and I rode a greyhound bus from downtown Detroit to Iowa City, Iowa, to go to the student writer's workshop at the University of Iowa, and returned to reshape our school paper, the North Pointe.  I doubt that as we did so we imagined where we would end up, but there you go.

I spoke at UCLA yesterday about narcotics policy and mass incarceration, and when I got done I did something I do most days-- look up what Ron had written.  What I found was intriguing and strong.

In that piece, titled "Will Obama be Presidential or Political?" the heart is in the subtitle-- "While the White House and Congress stumble to an agreement, the great unknown is Obama's second act."  It's a question that goes to the heart of my own work, as I hope that using the pardon power is a part of that second act.

Ron notes that the President has signaled that immigration reform is going to be his focus after the current fracas is done, rather than the national debt.  Clearly, immigration reform offers the better political pay-off, while the debt is (arguably) the more important broad issue.  Thus the question-- will he be political, and address immigration, or presidential, and make progress on the broader and tougher issue?

I agree with Ron that the better choice would be to address the debt, though I'll bet my friends here will probably disagree...

Wednesday, October 16, 2013


Go Tigers!

I really struggle to care about baseball once summer is over; it just seems kind of wrong, like seeing Christmas lights in April. 

Still, the Tigers are battling it out with the Red Sox for pennant, and I do feel compelled to care at least a little bit.  And anything with Prince Fielder involved is guaranteed to be interesting. 

Who are you betting on?

Tuesday, October 15, 2013


The Busy, Busy Bear

I'm beat!  I've given four presentations in four days, on for different topics.

On Friday, I gave a public lecture in Anchorage on the death penalty.

On Saturday, I did a three-hour workshop on social justice advocacy up there.

On Sunday, I gave two sermons and did a Q & A in between.

Yesterday, I presented a talk on narcotics policy at Stanford Law.

I'm not complaining, though-- these were all wonderful opportunities, and I am still mulling over some of the great questions I was asked.  At Stanford yesterday, there was a packed room and great energy... a really memorable moment of teaching and learning for me. 

Also yesterday, MSNBC ran this very well-done segment on clemency, where I got to talk to Ari Melber and Dafna Linzer: 

So, yeah, I'm tired.  But not as tired as my hero, Susan Stabile:

Monday, October 14, 2013


Kings of Haiku!

Short form, I am going with the elegant simplicity of the Spanish Medievalist:

Matt Foley lives in
a van down by the river,
he is thirty-five.

Long form, It's gotta be the Waco Farmer (Rebecca's work was strong, but Fernando creeps me out):

Much like the Razor,
witnessed SN debut
never strayed too far

Best Ever? Hmm, Tough.
More Cowbell? Updaters?
Carvey's Poppy Bush?

Biggest Faves: Less Tough
Bill Murray's Oscar Picks &
Wayne, Garth, Party On...

I am El Nino;
Matt Foley; Nixon;
WooWee; Fernando...

Ok, so he did lop Fernando on there at the end...

Sunday, October 13, 2013


Leaving Alaska

Now I am gone from Alaska, and different for the experience.  It is a strange and wonderful place.

It was really a whirlwind:  In three days, I gave a public lecture with Q & A, a workshop on social justice advocacy, a related session on negotiation, two sermons (which turned out to be different than one another), and an adult education session between those two services.  Whew! 

I did love Alaska, though.  I loved the churches I got to work with in Anchorage (St. Elizabeth Ann Seton and St. Mary's), I loved the hospitality I was shown,  I loved the great and thoughtful questions I got, and I loved seeing mountains every morning when I woke up and opened the drapes.


Sunday Reflection: The one leper

All over the world, people will hear preachers try to make something of the story told in Luke 17:11-19.  There, Jesus heals ten lepers at once.  Nine of them trot off happily while just one, a Samaritan, returns to Jesus to thank and acknowledge him.

What to make of this?  What did they say in your church?

Saturday, October 12, 2013


Last night in Alaska

Last night I gave the Caroline Penniman Wohlforth Lecture in Anchorage, Alaska, sponsored by St. Mary's Episcopal Church and hosted at St. Elizabeth Ann Seton Catholic Church.

It was a wonderful night-- a great crowd with excellent questions-- and I left thinking about the things I could have done better.  There were a Bishop and an Archbishop in attendance:  Mark Lattime, the Episcopal Bishop of Alaska and Francis Hurley, the former Archbishop of the Catholic Archdiocese of Anchorage.  Bishop Lattime came all the way from Fairbanks, which is over 400 miles away.  For a non-theologian talking about theology, that really puts some pressure on!

People here have been really hospitable-- even former Baylor student Justin Tapp, who sprang for lunch.

Friday, October 11, 2013


Haiku Friday: Best SNL Character

I missed Miley Cyrus on Saturday Night Live last week, and I'm ok with that.  However, there have, over the years, been some awesome bits on that show.  Let's haiku about our favorites!  I'll go first:

Stuart Smalley, heart!
The guest was Michael Jordan
Stuart made him laugh.

Now it is your turn... make it 5/7/5 and have fun!

Thursday, October 10, 2013


Political Mayhem Thursday: What about the Fourteenth Amendment?

My colleague Chuck Reid has written an intriguing piece over at the Huffington Post, extending the argument made by Garrett Epps that the Fourteenth Amendment ("[t]he validity of the public debt of the United States . . . shall not be questioned") should allow the Obama administration to simply ignore the debt ceiling.  Here is where Chuck goes with it:

I would add two further points. The first is that the constitutionally-imposed oath in which the president swears to "protect, preserve and defend the Constitution of the United States" imposes upon him the duties of a constitutional interpreter. It is the president's responsibility to understand and to apply the Constitution in times of ambiguity and crisis, such as these. And I would assert, secondly, that Justice Jackson is right: The Constitution is not a suicide pact. It is a document whose clauses should always be understood to favor sound government and the preservation of the American democratic experiment. It must never be interpreted to permit a handful of congressional representatives, defeated legislatively, to hijack the process and wreak willful havoc.

For what it is worth, I disagree with the wisdom of this idea.  In part, because it would further propel the ongoing argument that the President has unexplored powers that cannot be checked-- an argument that got us into the torture mess.  Further, I think other parts of the Constitution, entrusting a role for Congress in budget matters, cut strongly the other way.

What do you think?

Wednesday, October 09, 2013


Do I really need to watch "Breaking Bad?"

A lot of people are telling me that I need to watch "Breaking Bad," and seem kind of shocked I haven't been keeping up with it.  I still haven't gotten around to seeing "The Wire," so I am now two behind on shows that people really really think I need to see.

Is it worth it?

Tuesday, October 08, 2013


Top 5 American Sports Teams (as of today) based on total quality

1.  Denver Broncos
2.  Detroit Tigers
3.  Alabama football
4.  Detroit Red Wings
5.  Marissa Castelli & Simon Schnapir

Monday, October 07, 2013


Stuff in the news!

This piece I wrote with the NAACP Legal Defense Fund is now up at MSNBC.

Meanwhile, I was interviewed for a story on a very sad murder case here in Minnesota for the Minneapolis Star Tribune, and (earlier) in the St. Paul Pioneer Press.


That's some fine-tasting haiku!

There were some nice tidbits last week, on the topic of grilling.  Like this smooth-flowing poem from our favorite intern, CTL:

Back porch. Ice cold beer.
Glowing embers, not too hot.
Smoke. Meat. Breathing deep. 

And Ang sent in this morsel:

Bourbon-smoked turkey:
Brine overnight on ice with
fruit, garlic, spice, juice.

Wood chips, whiskey-soaked.
(Some for the grill, and a shot
or two for the cook!)

Finally, who could resist this bit of goodness from Jesse Davis?

Grass-fed ribeye steak,
Friendly steer from grandma's farm.
Nice cows taste better.

Is it an accident they are all from Texas?

Sunday, October 06, 2013


Sunday Reflection: Court as Temple

This is the paper I presented yesterday:

Appeal as Pilgrimage, Court as Temple
By Mark Osler
Presented at the 2013 William and Mary Annual Symposium for
Pilgrimage Studies


                  On a bright morning in 2008, I sat quietly in a temple.  It was far from home, but remarkable:  the outside is constructed with stout blocks of Vermont marble, the inside surfaces of Spanish marble with delicate ivory veins.  We sat quietly in rows, having come from every destination, peering around at our intimidating surroundings.  Looking back at us from the South wall, compellingly, is Moses bearing the Ten Commandments.  Like the others there from New York and Florida and California and Iowa, I am wearing dark clothing, the drab uniform of conformity.  I was anonymous there, all the more because each aspect of the temple was intentionally constructed to leave me humbled. 

         In the Temple of Justice (which is what the Supreme Court Building is really called on the Supreme Court web site),[1] the Justices sit high above and before us, wearing robes of authority.   A guard stands watch in our midst, vigilantly watching for the slightest wrong move.  We are humble guests before that which Americans worship.  We are pilgrims of the Constitution.

         There can be little doubt that the Constitution has to some degree replaced the Bible as a source of public values in America.  2010 U.S. Senate Candidate Christine O’Donnell was in step with many Americans when she described the Constitution as a “covenant” based on “divine principles.”[2]  This tendency is neither new nor limited to the political fringe; Woodrow Wilson criticized what he saw as an “undiscriminating and almost blind worship of its principles....”[3]

         Of course, there is much to love about the Constitution as a source of principles.  They are, after all, good principles:  That freedom should be respected, that concentrated power is dangerous, that individuals have inherent rights such as freedom of speech and religion, and even (through the pardon power) that mercy must have a role in human societies.  Those who conflate these principles with Christianity are mistaken,[4] but those Constitutional principles stand alone as a strong and coherent belief system, at least in relation to governments and citizens.  

         If we view the Constitution as a text bearing higher truths, and the Supreme Court as a temple of those truths, the long trek of an appellate lawyer can fairly be called a pilgrimage.  Though the experience is shared by few, it embodies both the key premises and the defining experiences of pilgrimage.

Defining Appellate Advocacy as Pilgrimage

         In looking to define a pilgrimage before holding appellate advocacy up to that template, I lean heavily on the work of George Greenia,[5] who has been my friend and guide as I tiptoe into the field of pilgrimage studies.  It is his lead that I follow in first looking to the work of Linda Davidson and David Gitlitz in defining the premises of pilgrimage.[6]

         Davidson and Gitlitz describe three fundamental premises of a pilgrimage.  The first is a “conviction that there are forces larger than ourselves—gods, superheroes, the tectonic plates of history—forces with the ability to influence our lives.”  The second is “an ability to potentially initiate a meaningful relationship with those forces,” and the third is that there are particular places where the power of those forces reside.

         Each of these premises neatly fit the experience of appellate advocacy. 

         As to the first premise, the enterprise itself reveals the belief in practitioners that there are greater forces at work:  After all, the advocate is going to that greater force, the force of law, and asking for a specific outcome.  I love the phrase “the tectonic plates of history,” because that precisely describes what we lawyers hope to influence as we argue for desegregation, or the freedom of corporations to express themselves through unlimited political spending, or by pressing for a societal recognition of same-sex marriage.  In our secret dreams, we are the ones who convince the gods of the law to move those tectonic plates.

         That dream both leads to and fulfills the second premise, that the pilgrim believes that she can “potentially initiate a meaningful relationship with those forces.” That describes exactly the goal of the appellate advocate, who seeks to harness the law, the Constitution, or both, through the power of the court.  We seek a relationship with the law that is ongoing, since it is rare that a single case will resolve an issue in one fell swoop.  More typical is what we call a “line” of cases, each influenced by its predecessor and the pilgrims who pressed it forward.

         Finally, the third premise asserts that a true pilgrimage involves travel to a particular place where those powerful forces reside.  A simple image resolves this question:  The Temple of Justice, with its gleaming white pillars and marble stairs.  We must travel to it to press our case, to seek that meaningful relationship with the law, and if we do not we forfeit the chance for that engagement.  The country lawyer from a dusty town in Texas travels to the Fifth Circuit courthouse in New Orleans; the attorney from Vermont drives his pickup down to the canyons of New York to argue in the Second Circuit, and we come from everywhere to ascend those marble steps in Washington DC in the fittingly (and oddly spiritually) named “Supreme” Court. 

         Extending these three basic premises, Greenia has posited seven complementary aspects describing the experience of being a pilgrim:

1)  A belief in the transcendent
2)  A connection to memory
3)  An ability to resist time itself
4)  Elision of self
5)  The invitation to a high-value performance
6)  A body-centered enterprise
7)  Incompleteness

I will address each in turn.

         First, drawing from the first premise above, Greenia looks for a motivating belief in the transcendent—a belief that at least implies that there is something greater than the pilgrim and the community she is from.  Law in our nation is constructed in precisely this way.  The municipal ordinance, however beloved, must give way to the Constitution if they conflict.  A community belief in, say, racial segregation, is transcended quite literally by the power of the Constitution and the Court.  Importantly, this is not a physical power, for the Court has no troops, has no coercive arm.  The transcending of local norms and individual actions is by power of moral compulsion alone.

         Second, Greenia suggests that pilgrimage has something to do with memory.  As he puts it, “Pilgrim paths lead deep into ancient times when the collective enjoyed clear consensus.”  Such is our belief in the Constitution, and our discussions of the framers of the republic and their work as a unique “Constitutional Moment” of particular inspiration.[7]  Mythology and reverence hang like mist around the (relatively) ancient time when that collective of men forged a document which did, in fact, find consensus among the states.

         Third, Greenia suggests that pilgrimage somehow involves the ability to resist time itself.  Pilgrims become a part of sacred memory going forward.  Just as we see ancient roots in what we do, appellate advocates seek directly to create memory going forward—they want to create precedent.  As the Constitution and the law evolve to encompass new realities, the appellate lawyer wants to create something timeless within that developing realm, a rule for the future. 

         Fourth, pilgrimage experiences require a certain elision of self, or what Greenia calls a surrender of individualism.  This is true for the appellate lawyer at two levels.  First, she has traveled to the courthouse not on her own behalf, but representing someone else.  There is something profound in that, the bare fact that this pilgrimage is almost always in the name of another.  Brown v. Board of Education bears the name of Oliver L. Brown, a welder and father of a third-grader, not the name of the man who argued that case so well before the Supreme Court of the United States (Thurgood Marshall).  Second, it is often true that the pilgrim does not want to just win that case, but to establish a precedent that will govern other cases.  In other words, the pilgrimage seeks to transform not only the pilgrim, and not even just the pilgrim and the person she represents, but the body of law itself. 

         Fifth, Greenia suggests that “pilgrimage invites a high-value performance on the part of the traveler.”  There are few pilgrimages for which this is more true than for the appellate lawyer, who is called on to stand before the judges and perform.  It isn’t optional; the performance is the reason for the journey. 

         Perhaps least relevant, at least at a superficial level, is Greenia’s sixth aspect of the pilgrimage experience, that it be at some level a body-centered enterprise.  Upon closer examination, however, the courtroom experience is a veritable Kabuki theater of ritualized movement.  All rise when the judges or justices arrive, and again when they depart.  When arguing, the advocate must stand within one arms-length of the podium or risk censure by the court.  If called upon while at the counsel table, the lawyer must rise for that, as well, and remain standing so long as she is conversing with the court.  Moreover, each of these movements have meaning; they are part of the dance of deference to the court that must be performed again and again for the artificially constructed hierarchy of authority to be maintained.

         Finally, we come to Greenia’s seventh element of the pilgrimage experience:  Incompleteness.  No pilgrim completes a pilgrimage with a sense they have exhausted the experience, that the story is finished.  So it is, powerfully, with the appellate experience.  Most obviously, the judges almost never declare an outcome—the pilgrims go home not knowing the success or failure of their quest.  Even with that aside, there is a deep incompleteness to even the most consequential appellate case.  Advocates are inevitably left to sort through innumerable loose ends—enforceability, retroactivity, scope of the precedent—and the road is never quite at an end.

Thurgood Marshall, Legal Pilgrim

         One delight of the legal pilgrimage, like many others, is to remember the people who have traveled the same road before.  Pilgrimage is not necessarily about the present; it is at times more of a pregnant space between the weight of the past and the creation of the future.

         The past, in American courts, holds the legacy of one of our greatest litigators, Thurgood Marshall.  Before becoming a Justice of the U.S. Supreme Court, Marshall was an appellate advocate both in the Supreme Court and in courts across the south.  His pilgrimage was significantly different, though, because of the realities of race in that time.  A moment probably came, in some southern courthouse, where Marshall walked out after an argument, tired and parched.  He could not, though, use the first water fountain he came to, because it was marked “whites.”

         Marshall’s preparation for an argument became ritual.  He prepared tabbed notebooks containing the cases he might need, to be kept readily at hand.  He obsessed over briefs, willing them to perfection.  For a week before an argument, he would drink one, and only one, glass of wine with his dinner.[8]  Then he took the train to Washington, where he won 29 of 32 cases in the United States Supreme Court.  While there, he and his assistants were often forced by segregation to stay in “negro” hotels, which Constance Baker Motley described as “no more than a rooming house in a ‘Negro’ residential area.”[9]

         The success of Thurgood Marshall was driven by his belief in the Constitution as singularly important document.  He famously memorized the entire thing at age 16, and one of his assistants at the NAACP reflected that Marshall had been taught at Howard Law School that the Constitution was “a powerful force, heretofore virtually untapped, that should be used for social engineering in race relations.”[10] 

         When a lawyer comes to Washington today from some far-off place, she is well aware of those who came before.  Within that history lies the thrill of re-creating it endlessly—that the experience of Thurgood Marshall in re-making the law is, in some small way, the same as each of those who come to create the legal future.

From the Steps

         I wasn’t alone that morning at the Temple of Justice in 2008.  I had brought two of my students from Waco with me: Matt Acosta and Dustin Benham. We had written a brief in an important sentencing case, Kimbrough v. United States,[11] which challenged strict sentencing guidelines in crack cocaine cases.  I was not arguing the case; instead we got to sit with the reverent crowd and watch the Justices at work. 

         While preparing our briefs, Matt Acosta and Dustin Benham had raised an intriguing point:  If Congress wanted that sentencing guideline to be the law rather than just an advisory guideline, they should have put it into a statute rather than hoping it would be inferred.  Congress could have acted, was even invited to act, in the way the government wanted, but had not.  We put it into our briefs, and it was incorporated into others that were submitted.

         At the end of the argument that day, Chief Justice Roberts, a swing vote, directly challenged the Deputy Solicitor General, Michael Dreeben.  Roberts’s point was that if Congress had wanted to make the guideline the law, they could have acted, and they hadn’t.  It appeared that the Chief Justice had seen our argument, and agreed. 

         Leaving the court, we went out with others involved in the case at the top of the broad stairs.  There was a buzz; it appeared the government would lose, and we would win a measure of mercy in crack cases, given that Roberts was sympathetic.  The buzz was right, and two years later Benham and I would win a follow-up case holding that sentencing judges could “categorically reject” the strict crack guidelines.

         There is a graceful moment after an argument where you step out of the cool dark of the courthouse into the late-morning sun of Washington, DC.  Far below you at the bottom of those famous white steps are the crowds and the news trucks and the bustle of the streets.  Looking straight ahead, you can see directly over the United States Capitol to the green spaces of the Mall, to the Lincoln Memorial and its matching set of white steps where Martin Luther King, Jr. spoke about the dream for his children. 

         I stopped my two students at the top of those steps, and we took in the view and all that had happened in silence.  We had seen the tectonic plates of history move.  “This,” I told them, “is as good as it gets.”

         Was it a pilgrimage?  If not, then what is?





[2] Andrew Romano, Tea Party Evangelists Claim the Constitution as Their Sacred Text.  Why That’s Wrong, Daily Beast, October 17, 2010, available at
[3] Edward S. Corwin, The Worship of the Constitution, 4 Constitution Review 3 (1920).  Corwin’s belief was that the Constitution has been revered as a source of values nearly from the very time of its ratification.
[4]  I have set out this argument elsewhere.  Mark Osler, Aseret Had’Varim in Tension:  The Ten Commandments and the Bill of Rights, 49 Journal of Church and State 683 (2007); Mark Osler, A Biblical Value in the Constitution:  Mercy, Clemency, Faith, and History, 9 University of St. Thomas Law Journal 769 (2012).
[5] Much of my guidance is gleaned from the draft of a work in progress he kindly provided me, which is to be part of an anthology for those like myself who are new to pilgrimage studies.
[6] Davidson, Linda Kay & David Gitlitz, Pilgrimage:  From the Ganges to Graceland: An Encyclopedia.  2 Vols.  Santa Barbara, CA:  ABC-CLIO, 2002.
[7] The term “Constitutional Moment” is most often associated with Bruce Ackerman and his 1993 book, We The People.  Ackerman recognizes these moments not only at the time the Constitution was framed, but periodically thereafter.
[8] Howard Ball, A Defiant Life:  Thurgood Marshall and the Persistence of Racism in America, p. 71 (Crown Publishers 1998).
[9]  Constance Baker Motley, My Personal Debt to Thurgood Marshall, in Thurgood Marshall:  Justice for All, p. 163 (Carrol & Graf Publishers 1992, Roger Goldman & David Gallen, eds.).

[10]  Robert Carter, A Tribute to Thurgood Marshall, in Thurgood Marshall:  Justice for All, p. 190 (Carrol & Graf Publishers 1992, Roger Goldman & David Gallen, eds.).
[11] 552 U.S. 85 (2007).

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